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GE.11-13201

Human Rights Council

Seventeenth session

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression, Frank La Rue

Summary

This report explores key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds through the Internet. The Special Rapporteur underscores the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole. Chapter III of the report underlines the applicability of international human rights norms and standards on the right to freedom of opinion and expression to the Internet as a communication medium, and sets out the exceptional circumstances under which the dissemination of certain types of information may be restricted. Chapters IV and V address two dimensions of Internet access respectively: (a) access to content; and (b) access to the physical and technical infrastructure required to access the Internet in the first place. More specifically, chapter IV outlines some of the ways in which States are increasingly censoring information online, namely through: arbitrary blocking or filtering of content; criminalization of legitimate expression; imposition of intermediary liability; disconnecting users from Internet access, including on the basis of intellectual property rights law; cyber- attacks; and inadequate protection of the right to privacy and data protection. Chapter V addresses the issue of universal access to the Internet. The Special Rapporteur intends to explore this topic further in his future report to the General Assembly. Chapter VI contains the Special Rapporteur's conclusions and recommendations concerning the main subjects of the report. * Late submission.

United Nations

A/HRC/17/27

General Assembly

Distr.: General

16 May 2011

Original: English

A/HRC/17/27

2 The first addendum to the report comprises a summary of communications sent by the Special Rapporteur between 20 March 2010 and 31 March 2011, and the replies received from Governments. The second and third addenda contain the findings of the Special Rapporteur's missions to the Republic of Korea and Mexico respectively.

A/HRC/17/27

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Contents

Paragraphs Page

I. Introduction............................................................................................................. 1-3 4

II. Activities of the Special Rapporteur ....................................................................... 4-18 5

A. Communications............................................................................................. 4 5

B. Participation in meetings and seminars........................................................... 5-10 5

C. Country visits.................................................................................................. 11-18 5

III. General principles on the right to freedom of opinion and expression and

the Internet ............................................................................................................. 19-27 6

IV. Restriction of content on the Internet...................................................................... 28-59 9

A. Arbitrary blocking or filtering of content ....................................................... 29-32 9

B. Criminalization of legitimate expression........................................................ 33-37 10

C. Imposition of intermediary liability................................................................ 38-48 11

D. Disconnecting users from Internet access, including on the basis of

violations of intellectual property rights law.................................................. 49-50 14

E. Cyber-attacks.................................................................................................. 51-52 14

F. Inadequate protection of the right to privacy and data protection................... 53-59 15

V. Access to the Internet and the necessary infrastructure........................................... 60-66 16

VI. Conclusions and recommendations......................................................................... 67-88 19

A. Restriction of content on the Internet ............................................................. 69-84 19

B. Access to the Internet and the necessary infrastructure ................................. 85-88 22

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I. Introduction

1. The present report is submitted to the Human Rights Council by the Special

Rapporteur on the promotion and protection of the right to freedom of opinion and expression pursuant to Human Rights Council resolution 7/36. In particular, the resolution requests the Special Rapporteur "to continue to provide his/her views, when appropriate, on the advantages and challenges of new information and communication technologies, including the Internet and mobile technologies, for the exercise of the right to freedom of opinion and expression, including the right to seek, receive and impart information and the relevance of a wide diversity of sources, as well as access to the information society for all". 1 On this basis, the report expands upon the previous mandate holders' reports on topics related to the Internet, 2 taking into account recent developments and information gathered through five regional consultations organized by the Special Rapporteur in 2010 and 2011. 3

2. While the Internet has been in existence since the 1960s, its current use throughout

the world across different age groups, and incorporation into virtually every aspect of modern human life, has been unprecedented. According to the International Telecommunication Union, the total number of Internet users worldwide is now over 2 billion. 4 Active users of Facebook, an online social networking platform, grew from 150 million to 600 million between 2009 and 2011. The Special Rapporteur believes that the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. Indeed, the recent wave of demonstrations in countries across the Middle East and North African region has shown the key role that the Internet can play in mobilizing the population to call for justice, equality, accountability and better respect for human rights. As such, facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States.

3. In this regard, the Special Rapporteur would like to underscore that access to the

Internet has two dimensions: access to online content, without any restrictions except in a few limited cases permitted under international human rights law; and the availability of the necessary infrastructure and information communication technologies, such as cables, modems, computers and software, to access the Internet in the first place. The first dimension is addressed in Chapter IV of the report, which outlines some of the ways in which States are restricting the flow of information online through increasingly sophisticated means. The second dimension is examined in Chapter IV. The Special Rapporteur intends to explore the latter issue further in his future report to the General

Assembly.

1

Human Rights Council resolution 7/36, para. 4(f).

2 E/CN.4/1998/40; E/CN.4/1999/64; E/CN.4/2000/63; E/CN.4/2001/64; E/CN.4/2002/75; E/CN.4/2005/64; E/CN.4/2006/55; A/HRC/4/27; A/HRC/7/14. 3

See para. 5 for further information.

4 International Telecommunication Union, StatShot No.5, January 2011 Available from:

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II. Activities of the Special Rapporteur

A. Communications

4. Between 20 March 2010 and 31 March 2011, the Special Rapporteur sent 195

communications, 188 of which were submitted jointly with other special procedures mandate holders. The geographical distribution of the communications was as follows: 29 per cent for Asia and the Pacific; 26 per cent for the Middle East and North Africa; 16 per cent for Africa; 15 per cent for Latin America and the Caribbean; and 14 per cent for Europe, Central Asia and North America. The summary of communications sent and replies received from Governments can be found in the first addendum to this report (A/HRC/17/27/Add.1).

B. Participation in meetings and seminars

5. The Special Rapporteur, with the support of local organizations, organized a series

of expert regional consultations, beginning in March 2010 in Stockholm, followed by Buenos Aires (18-19 October 2010), Bangkok (18-19 November 2010), Cairo (11-13 January 2011), Johannesburg (15-16 February 2011), and Delhi (2-3 March 2011). The regional consultations concluded on 30 March 2011 with an expert meeting in Stockholm, organized by the Ministry of Foreign Affairs of Sweden. These meetings brought together experts and human rights defenders working on a range of Internet and freedom of expression-related issues in order to better understand their experience, needs and priorities in different countries and regions for the purposes of this report.

6. From 14 to 17 September 2010, the Special Rapporteur attended the Fifth Internet

Governance Forum in Vilnius.

7. On 30 November 2010, the Special Rapporteur participated in an expert round table

entitled "Equality, Non-discrimination and Diversity: Challenge or Opportunity for the Mass Media?" in Geneva, organized by the Office of the High Commissioner for Human

Rights (OHCHR).

8. On 9 and 10 February 2011 and on 6 and 7 April 2011, the Special Rapporteur

participated as an expert in the regional expert workshops on the prohibition of incitement to national, racial or religious hatred organized by OHCHR in Vienna and Nairobi respectively.

9. On 16 March 2011, the Special Rapporteur shared his views regarding the

compatibility of blocking child pornography on the Internet with the right to freedom of expression in the context of discussions on the proposal for a directive of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography.

10. The Special Rapporteur also participated in a series of academic events in other

countries, including Guatemala, Mexico, the Philippines, South Africa, Sweden and the

United States of America.

C. Country visits

11. The Special Rapporteur notes that country visits remain central to his mandate.

Requests sent to Governments to undertake a country mission are based on several factors, such as visits undertaken and requested by the former mandate holders, trends that emerge from communications sent on alleged violations of the right to freedom of opinion and

A/HRC/17/27

6 expression, and consideration of geographical balance. The Special Rapporteur hopes that visit requests will be favourably received by the Governments concerned.

1. Missions undertaken in 2010 and 2011

12. From 5 to 15 May 2010, the Special Rapporteur undertook a mission to the Republic

of Korea. The mission report is included as an addendum to this report (A/HRC/17/27/Add.2).

13. From 10 to 21 August 2010, the Special Rapporteur undertook a mission to Mexico,

together with the Special Rapporteur for Freedom of Expression for the Inter-American Commission on Human Rights, Catalina Botero. The mission report is included as an addendum to this report (A/HRC/17/27/Add.3).

14. From 3 to 5 April 2011, the Special Rapporteur visited the Republic of Hungary, at

the invitation of the Government, to provide expert advice to the Government regarding Hungarian media legislation. The press release with his conclusions and recommendations can be found on the OHCHR website. 5

15. From 10 to 17 April 2011, the Special Rapporteur undertook a mission to Algeria.

The mission report will be presented at a future session of the Human Rights Council in

2012. The press release with his initial conclusions and recommendations can be found on

the OHCHR website. 6

2. Upcoming missions

16. The visit to Israel and the occupied Palestinian territory, which was scheduled to

take place in May 2011, has been postponed. The new dates of the visit have yet to be agreed upon.

17. The Special Rapporteur would like to thank the Italian Government for its letter

dated 6 August 2010 in response to his request for a visit. He hopes that a mutually convenient set of dates can be agreed upon for a visit in 2011.

3. Pending requests

18. As of March 2011, the following visit requests from the Special Rapporteur were

pending: the Islamic Republic of Iran (requested in February 2010), Sri Lanka (requested in June 2009), Tunisia (requested in 2009), and the Bolivarian Republic of Venezuela (requested in 2003 and 2009). III. General principles on the right to freedom of opinion and expression and the Internet

19. Very few if any developments in information technologies have had such a

revolutionary effect as the creation of the Internet. Unlike any other medium of communication, such as radio, television and printed publications based on one-way transmission of information, the Internet represents a significant leap forward as an interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms that facilitate participatory information sharing and collaboration in the creation of content, individuals are no longer passive recipients, but also active publishers of information. Such 5

Available from:

6 Ibid.

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7 platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information. Furthermore, producers of traditional media can also use the Internet to greatly expand their audiences at nominal cost. More generally, by enabling individuals to exchange information and ideas instantaneously and inexpensively across national borders, the Internet allows access to information and knowledge that was previously unattainable. This, in turn, contributes to the discovery of the truth and progress of society as a whole.

20. Indeed, the Internet has become a key means by which individuals can exercise their

right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The latter provides that:

(a) Everyone shall have the right to hold opinions without interference; (b) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice; (c) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (d) for respect of the rights or reputations of others; (e) for the protection of national security or of public order (ordre public), or of public health or morals.

21. By explicitly providing that everyone has the right to express him or herself through

any media, the Special Rapporteur underscores that article 19 of the Universal Declarationquotesdbs_dbs26.pdfusesText_32

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